Citation Nr: 0947776
Decision Date: 12/17/09 Archive Date: 12/31/09
DOCKET NO. 07-25 565 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to a compensable evaluation prior to February 5,
2009 and an evaluation in excess of 10 percent since February
5, 2009.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Olson, Counsel
INTRODUCTION
The Veteran had active military service from October 1961 to
August 1962 and from November 1963 to April 1970.
This matter comes before the Board of Veterans' Appeals
(Board or BVA) on appeal from rating decisions dated in April
2006 and March 2009 of the Department of Veterans Affairs
(VA) Regional Office (RO) in Huntington, West Virginia.
In August 2009, the Veteran testified at a travel board
hearing before the undersigned Veterans Law Judge. A
transcript of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran contends that the noncompensable evaluation
assigned prior to February 5, 2009 and the 10 percent
evaluation assigned since that time for his bilateral hearing
loss with left ear tympanoplasty does not accurately reflect
the severity of the disorder. At the August 2009 travel
board hearing, the Veteran testified that although he was
recently examined for his hearing loss, his hearing loss had
gotten worse.
The United States Court of Appeals for Veterans Claims
(Court) has held that when a Veteran alleges that his
service-connected disability has worsened since he was
previously examined, a new examination may be required to
evaluate the current degree of impairment. See Snuffer v.
Gober, 10 Vet. App. 400, 403 (1997). The Board observes that
the Veteran last had a VA examination for compensation and
pension purposes in February 2009. Thus, the appellant
should be provided an opportunity to report for a current VA
audio examination to ascertain the current status of his
service-connected hearing loss.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded a VA
examination to ascertain the severity of
his bilateral hearing loss. The claims
file must be made available to and
reviewed by the examiner in conjunction
with the examination, and the examination
report should reflect that such a review
was made. All pertinent symptomatology
and findings should be reported in
detail. Any indicated diagnostic tests
and studies should be accomplished. The
examiner is specifically requested to
fully describe the functional effects
caused by the Veteran's hearing
disability.
2. The case should be reviewed on the
basis of the additional evidence. If the
benefit sought is not granted in full,
the Veteran should be furnished a
Supplemental Statement of the Case and be
afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the
appellant that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examination, is both
critical and appreciated. The appellant is also advised that
failure to report for any scheduled examination may result in
the denial of a claim. 38 C.F.R. § 3.655.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).